pinterest, righthaven, and the surprising varieties of fair use
Is Pinterest the napster of images? Tech circles have bruised themselves wrestling with this question since a sometime photographer and attorney raised it late last month.
Kirsten Kowalski, who asked the question and also asked not to be quoted, in whole or in part, made a–to paraphrase–lachrymose parting with her Pinterest inspiration boards. She shared a thoughtful and earnest elaboration of her reasons on the basis of potentially rampant copyright violations on Pinterest.
Kowalski’s revelation begins with fair use. Fair use provides limitations on the exclusive rights of copyright. If copyright presents the holder of a state-sponsored monopoly on an expression fixed in a medium, it also says, wait a minute - sometimes we should share. But the law has never been absolutely clear on the boundary between fair use and infringement. Because the penalties on infringement are so great, Kowalski concludes, better safe than sorry and an internet sensation is born.
Fair use, however, isn’t always straightforward. Take the case of Righthaven. Drawing from the example of so-called patent trolls, Righthaven was established in 2010 to identify and monetize copyright violations across blogs and websites. Righthaven was Kowalski’s nightmare. She was afraid someone might sue her for copying an image to Pinterest, tie her up in litigation, and extract potentially sizable damages. She was afraid of a Righthaven.
Righthaven succeeded in some ways. Stephens Media of Las Vegas, operator of the Las Vegas Review-Journal and anchor client of Righthaven, transferred portfolios of copyrights associated with infringements. Righthaven launched an aggressive and litigious campaign to collect royalties and damages for Stephens and other clients on the basis of snippets and outright copying of these materials. Because the penalties can be so high for each infringement - $150,000 per violation - they settled many cases and appeared to be on a winning streak. But it did not end well - not for Righthaven.
On Tuesday, March 13th, U.S. District Judge Philip M. Pro relieved Righthaven of its trove of copyrights it had been assigned, as well as its own web domain, to settle debts of more than $200k to defendants who chose to fight Righthaven’s advances. Not only did Righthaven fail, it failed so dramatically that Judge Pro’s decision to auction the assets stemmed from a failed attempt to extract damages from an individual who posted the entirety of a Review-Journal editorial to an online message board - as seemingly clear cut an infringement as one would expect. Nonetheless, Judge Pro labeled it fair use. Wayne Hoehn had posted it toprovoke a broader discussion around the finances of the nation at large.
Are the photographs and images shared on Pinterest covered by fair use? It’s hard to say, and at the extreme, Kowalski is correct, but fair use isn’t always about extremes. Righthaven had poor Hoehn seemingly dead to rights, but the stalking horse for Kowalski’s nightmare collapsed into a shamed and indebted failure. Such is the supple and sometimes unexpected way of fair use.
So rather than hyperventilate and quiver in fear over the napsterization of images on Pinterest, it may be better to breath a minute and recognize that the real question isn’t even whether it is fair use. We should assume it probably is, so we can get to the real question – how can Pinterest provide all those artists and photographers a greater economic stake in the game? How can Pinterest help them build their reputation, influence and business? How can they make them their allies?
